Background

On January 4, 2009, the final repeal of the HIV travel and immigration ban went into effect. For too long the United States denied HIV positive non-citizens access to citizenship, residency and visiting rights based solely on their HIV status. Since 1987, under section 212(a)(1) of the Immigration and Nationality Act (INA), a non-citizen determined to have a "communicable disease of public health significance" has been inadmissible into the United States. Over the past twenty years, the Human Immunodeficiency Virus (HIV) has been considered a "communicable disease of public health significance." HIV-positive non-citizens have thus been barred from entry into the United States, and HIV-positive non-citizens already in the US have been barred from adjusting their status to that of a legal permanent resident. Although there was a waiver available for HIV-positive non-citizens, it was only available to those with a parent, spouse or child living in the U.S. as a citizen or legal permanent resident. This restriction was put in place in 1987 at the request of the late Senator Jesse Helms (R-NC) during the height of the homophobic political climate of the late 1980s.

As of the start of 2010 the U.S. no longer bars entry based on HIV status.

Public health experts have long acknowledged that the HIV entry ban does nothing to prevent the spread of HIV across international boundaries and is in fact out of step with the public health and immigration policies of much of the rest of the world. This welcome change is the result of decades of advocacy and education of public officials. The legislative action needed to repeal the ban occurred in July 2008 when President Bush signed into law the reauthorization of the President's Emergency Plan for AIDS Relief (PEPFAR II). This amended the Immigration and Naturalization Act, striking the provision that renders individuals with HIV inadmissible to the United States. Congresswoman Barbara Lee and Senator John Kerry led the fight in Congress to repeal the entry ban. This repeal of the statutory bar required the Department of Health and Human Services (HHS) to reconsider whether HIV should continue to be listed as a communicable disease "of public health significance" that renders non-citizens inadmissible to the United States. A policy change at HHS was the final barrier to a full repeal. A proposed rule change, started in the final months of the Bush Administration and promulgated by the Obama Administration, proposed the removal of HIV from the list of "communicable disease[s] of public health significance." During a public comment period in July and August of 2009, HHS received an overwhelming positive response to these proposed changes. While 19,000 comments were made in favor of the change, only 500 were made in opposition.

The publication of the final rule was announced by President Obama on October 30, 2009, to go into effect January 4, 2010.

President Obama noted the historic and significant nature of this policy change: "Twenty-two years ago, in a decision rooted in fear rather than fact, the United States instituted a travel ban on entry into the country for people living with HIV/AIDS. Now, we talk about reducing the stigma of this disease, yet we have treated a visitor living with it as a threat. We lead the world when it comes to helping stem the AIDS pandemic, yet we are one of only a dozen countries that still bar people with HIV from entering our own country. If we want to be the global leader in combating HIV/AIDS, we need to act like it. And that is why, on Monday [Nov. 2], my administration will publish a final rule that eliminates the travel ban, effective just after the new year. ..."1

What This Means for HIV Advocacy

Symbolically, the rule will help reduce HIV-related stigma, and bring the United States into compliance with international health policies regarding HIV immigration and travel. The United States' HIV entry and immigration ban was at odds with current medical knowledge involving the transmission of HIV, and was also in direct opposition to the U.N.'s International Guidelines for HIV/AIDS and Human Rights.2 The ban placed the United States alongside only 13 other countries that ban HIV-positive short term visitors: Brunei, Egypt, Iraq, Yemen, Malaysia, Oman, Qatar, Singapore, Sudan, South Korea, Tunisia, Turks & Caicos Islands, and the United Arab Emirates. This put the U.S. in a category with many countries whom the U.S. State Department describes as having either poor or significantly problematic human rights records.3 The new American policy demonstrates the Obama Administration's commitment to fight HIV-related stigmatization and treat HIV positive non-citizens with an increased standard of dignity.

What This Means for HIV Positive Non-Citizens

HIV will be taken off the list of "communicable diseases" that would normally bar entry without a waiver. HIV-positive non-citizens will no longer have to submit to an HIV test when applying for an American visa. Applicants will still need to undergo a visa-related medical examination, but it will not include an HIV test, decreasing the costs of visa-related medical examinations. In addition, HIV-positive non-citizens applying for entry or adjustment will no longer have to file for a waiver of inadmissibility, which costs a hefty $545. However, applicants will still be denied for any of the other diseases still on the list of "communicable diseases of public health significance" -- including active tuberculosis, infectious syphilis, gonorrhea, infectious leprosy, etc. -- unless a waiver is obtained.

This change does not provide amnesty for persons with HIV who previously entered without inspection or were previously denied entry due to their health status. While HIV is no longer a bar to applying for permanent residence, all applicants for a green card must qualify under current immigration law. This means that to get a green card you must have family or employer sponsorship, a current spot in the diversity lottery, asylum, or another recognized means to apply. Many undocumented HIV positive persons who have been living in the United States still will not have access to residency because they have been in the country without lawful status. The new provision simply means that after January 4, 2010, HIV-positive non-citizens going through an already established path to residency will no longer need to apply for an HIV waiver.

People who are at varying points of applying for residency, waivers, visas and asylum are affected differently by this change. Anyone who has filed an HIV waiver as part of his or her green card application should notify the U.S. Citizenship and Immigration Services (USCIS) that the ban has been lifted, and ask that their application be adjudicated. If you have previously applied for and been denied residency because of your HIV status, you may be able to re-open your case if you are still eligible under current statues. Anyone applying for asylum on the basis of being HIV-positive should not be affected by this new ruling, because those applications are based upon threat of persecution in country of origin. People previously denied visas because of their HIV status will no longer have that barrier. However, you must still qualify for all other requirements, including a demonstrated intent to return home. While HIV status no longer bars access to immigration, other barriers could affect some people living with HIV. Some people living with HIV whose health poses major barriers may find it difficult to meet USCIS requirements that candidates demonstrate an ability to support themselves, due to the affects of living with HIV. No matter one's relative health, no person is required to bring up their HIV status in the immigration process.4

The new rule is not retroactive. The final rule obligates the Centers for Disease Control and Prevention and the Department of Health and Human Services to continue working with the State Department and the Department of Homeland Security to ensure that panel physicians and civil surgeons who conduct the medical examinations are aware of the revision to the current rule.5

Conclusion

This is a huge victory for human rights and persons living with HIV. The new rule not only eliminates HIV screenings during medical examinations, but also eliminates the need for an expensive waiver application. It also brings the United States into line with international policies regarding HIV and travel restrictions and removes the institutional stigma placed on persons with HIV and AIDS by the old regulation.

Erin Price is a third year law student at CUNY School of Law and a legal intern at GMHC.

This article was provided by Gay Men's Health Crisis. It is a part of the publication GMHC Treatment Issues.
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